Guidance on the U.S. Foreign Corrupt Practices Act from the Department of Justice and the Securities & Exchange Commission: The Key, as with the U.K. Bribery Act and the OECD Anti-Bribery Convention, Is a Robust Compliance Program
By THE GLOBAL COMPLIANCE AND DISPUTES PRACTICE GROUP
A year in the making, on November 14, 2012, the Department of Justice and the Securities and Exchange Commission issued a joint publication called the Resource Guide to the U.S. Foreign Corrupt Practices Act which outlines the governments interpretation of the law, provides insight into the governments enforcement priorities, and provides a tangible and concrete understanding of how the government exercises its discretion. The Guide grew out of discussions with various interest groups, including large NGOs like Transparency International, industry groups such as the U.S. Chamber of Commerce, small and mid-sized businesses, corporate compliance counsel, and investor groups. Although the Guide does not change the way the FCPA will be enforced or add the corporate defenses businesses sought, akin to those in the U.K. Bribery Act, it helpfully summarizes the current body of DOJ and SEC opinions, leading cases, and enforcement practices. Most usefully, the Guide sets out hypothetical examples of what conduct is prohibited and includes multiple examples, based on real-life investigations, where the government declined to prosecute. Like the guidance issued by the U.K. relative to the Bribery Act and the OECD relative to the Anti-Bribery Convention, the Guide makes clear the importance of an anti-corruption compliance program, of due diligence, and of documented policies and procedures to mitigate non-compliance and to obtain credit from the government in this era of heightened enforcement.